AS THE Australian Law Reform Commission (ALRC) contemplates a review of client legal privilege (CLP), the nation’s chief representative body for the legal profession has warned against changing what it says is a fundamental right of clients and a crucial tool of justice.
The Law Council of Australia (LCA) is against changes to the laws governing CLP, especially where it acts in the case of corporations, royal commissions or in any other investigatory or regulatory context.
While attending the most recent LAWASIA conference in Hong Kong last week, LCA president Tim Bugg told Lawyers Weekly that the systems that monitor the use of CLP are already working well, as the Federal Court’s handling of the issue in regard to the Cole Inquiry showed.
“Commissioner Cole expressed some frustration about the process and at that time was keen for the question of privilege in relation to documentation and communication to be determined by the royal commission itself,” Bugg said.
“However, it was dealt with by the Federal Court and we would say appropriately and in a timely way.”
As a right of clients, not lawyers, CLP is an essential component of our legal system, Bugg said.
“We live in a world of increasing legislation affecting people’s rights [and] obligations. The general public must be in a position to obtain advice in a frank, free-speaking environment with their legal advisers.”
And while the LCA position is that CLP should not be altered, Bugg said the process could nonetheless be sped up to improve efficiency.
However, tinkering with CLP to address Commissioner Cole and Federal Attorney-General Philip Ruddock’s concerns may in itself be the cause of further delays. For if clients withhold key information from their lawyers, this might result in the giving of incomplete advice, Bugg said.
According to Bugg, there is definite merit in ensuring lawyers are kept well-informed about CLP through ongoing education.
“[But] even if they have been educated to the appropriate level … from time to time their advice about a particularly CLP may not be right,” he said.
“That doesn’t mean they are doing anything wrong. The way in which a particular document or piece of communication is interpreted may vary from one lawyer to another. But that ultimately will be determined by the court, and that is the appropriate forum for the determination for claims of privilege.”
If the ALRC considers changes to CLP, then the LCA wants safeguards to be put in place to mitigate the damage caused to the administration of justice and the rights of individuals and entities. Yet Bugg acknowledged there have been exceptional circumstances in the past, such as the James Hardie asbestos case, in which a change to the way CLP operated was acceptable.
The public interest in ensuring that compensation went to asbestosis victims could have been said to override the public interest in having CLP as an ongoing principle, “but those exceptional circumstances, we say, will be very few and far between,” he said.
“And importantly, in the context of the royal commissions for example, no one involved is saying royal commissioners have not got to the proof of issues before them. Rather, it’s been more of a complaint perhaps of the process being slowed up.”
In order to address shortcomings in the exercise of CLP, the LCA is in favour of clarifying its application to all Commonwealth investigatory or regulatory agencies, and establishing processes and guidelines for government agencies. In its submission, the LCA acknowledged the very existence of CLP, and associated claims, “may be regarded as an inconvenient obstacle to the efficiency of the investigative process”.
“[But] that in itself is not a justification for the abrogation of CLP, but rather for the establishment of better procedures for recognising and determining CLP claims.”
If CLP were to be annulled or changed in any way, there would be harm done to the lawyer-client relationship, compliance with the law and the overall administration of justice, the LCA said.
The LCA submission was made in response to the Australian Law Reform Commission’s (ALRC) Issues Paper No 33, Client Legal Privilege and Federal Investigatory Bodies (IP-33). Submissions will be ongoing until the ALRC reaches its verdict later in the year.